*(121*App. Div. 597.)

#### SHAW v. FELTMAN et al.

(Supreme Court, Appellate Division, Second Department.

October 4, 1907.)

1. Pleading—Demurrer—Inferences.

On demurrer, plaintiff is entitled to have the facts stated in his complaint taken as true and all reasonable inferences resolved in his favor.

2. Master and Servant—Injury to Servant—Complaint—Assumption of

Risk.

The complaint in an action for injury to a servant need not show that the accident resulted from a risk not assumed by him.

[Ed. Note.—For cases in point, see Cent. Dig. vol 34, Master and Servant, §§ 844-847.]

3. Same—Negligence of Fellow Servants.

Nor need it show that the accident was not due to negligence of fellow servants.

[Ed. Note.-^-For cases in point, see- Cent. Dig. vol. 34, Master and Servant, § 837.]

4. Same—Negligence.

A complaint alleging that plaintiff was employed by defendants to work in a kitchen in a building owned and controlled by them; that a skylight over the kitchen and the glass in it were in a defective, ruinous, and dangerous condition, of which defendants had notice; and that a piece of glass fell from the skylight because of such condition and came in contact with and injured plaintiff—sufficiently shows negligence and absence of contributory negligence.

[Ed. Note.—For cases in. point, see Cent. Dig. vol. 34, Master and Servant, §§ 816-823, 825.]

Appeal from Special Term, Kings County.

Action by Ellwood Shaw against Charles L. Feltman and another. Defendants’ demurrer to the complaint was overruled, and they appeal. Affirmed.

See 91 N. Y. Supp. 114.

The following is the opinion of Kelly, J., at Special Term:

The parties occupied the relation of master and servant, and the plaintiff, the servant, sues the defendants, the masters, for damages resulting from their alleged negligence. On a demurrer he is entitled to have the facts stated in the complaint taken as true, and all reasonable inferences are to be resolved in his favor. The defendants say the complaint does not state facts sufficient to constitute a cause of action, in that there is no sufficient allegation of negligence or lack of contributory negligence. Defendants claim that the complaint should contain averments that the accident did not result from a risk assumed by the servant and that the accident was not due to the negligence of fellow servants. These last two contentions are clearly wrong. Plaintiff is not obliged to plead either of the propositions advanced. They are matters for defendant to allege or to prove on the trial. Rooney v. Brogan Construction Co., 107 App. Div. 258, 95 N. Y. Supp. 1. There are decisions holding that a complaint in a negligence action is good, without an *1044allegation ■ of absence of contributory negligence, and that defendant must plead- in his answer that the negligence is the negligence of fellow servants. I do not agree with these decisions, but I refer to them as evidencing the view which the courts, take of these matters; the object being to arrive at a just determination of the action on the merits. Plaintiff must allege that -defendants were guilty of negligence, but he is not called upon to plead all the details of the evidence and negative every possible defense which may be interposed.

This demurrer was stricken out as frivolous, but the order was reversed by the Appellate Division. Shaw v. Feltman, 99 App. Div. 514, 91 N. Y. Supp. 114. The' Appellate Division did not, however, pass upon the sufficiency of the -complaint. Judged by the standards laid down in innumerable decisions, and giving the plaintiff the benefit of the facts and reasonable inferences, I think the complaint is good. He says he was employed by the defendants to work *in*a kitchen in a building owned and controlled by defendants in Coney Island; that there was a skylight over the kitchen, and that the skylight and the glass therein were in a defective, ruinous, and dangerous condition, of all of which the defendants had notice; that a piece of glass fell from the skylight, coming in contact with plaintiff and injuring him. It may be that the ¡mere allegation that the glass fell, without a distinct averment that it fell ■by reason of the defective and dangerous condition alleged, would not be sufficient ; but this very fact is set forth in paragraph 8. It is there stated that ■the glass fell because of the defective and ruinous and broken condition in which it was maintained by defendants, with full knowledge, a condition described as “dangerous.” A master cannot put his servants to work in a place -known to him to be dangerous, unsafe, and with defective skylights and ceilings liable to fall and injure the employé, without incurring liability. If the ■servant knew of the condition, if he assumed the risk, if he was guilty of -contributory negligence, if it was a risk incident to his employment, or if the accident happened by reason of his own or his fellow servants’ negligence, he ■cannot recover; but all these things are matters of proof. I think the complaint is good.

Demurrer overruled, with leave to defendants to answer upon payment of costs.

Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ.

Joseph M. Gazzam, Jr., for appellants.

Solomon A. Cohn, for appellee.

PER CURIAM.

Interlocutory judgment affirmed, with costs, on the opinion of KELLY, J., at Special Term.